In the matter of Department of Environmental Quality Case Numbers 5169 and 5178

Hearing Dates: May 31 & June 1, 2001
Decision Issued: June 4, 2001

Due to illness of the agency’s legal representative, the hearing had to be postponed from the first docketed date of May 4, 2001. Due to availability of the participants, the hearing could not then be docketed until the 55^th day following appointment of the hearing officer.

Grievant had filed two separate grievances. In the first, he grieved his performance evaluation for the 2000 performance cycle; in the second, he grieved his January 16, 2001 discharge from the agency. The Director of the Department of Employment Dispute Resolution, pursuant to the Grievance Procedure Manual, concluded that consolidation of these two grievances would promote judicial economy and a more comprehensive understanding of the disputed issues.¹

Grievant
Attorney for Grievant
One witness for Grievant
Observer for Grievant
Legal Representative for Agency
Department Manager
Two witnesses for Agency
Observer for Agency

Was the grievant’s performance evaluation for the 2000 performance cycle arbitrary or capricious? Was the grievant’s performance during the 90-day period subsequent to his 2000 performance evaluation such as to warrant discharge from employment pursuant to the Commonwealth of Virginia Performance Planning and Evaluation Policy?

The grievant filed timely appeals both from his 2000 performance evaluation and from his discharge from employment effective January 16, 2001 because his performance failed to meet minimum expectations. Following failure to resolve either grievance at the third resolution step, the grievances were qualified for a hearing.

The Department of Environmental Quality (hereinafter referred to as "agency") has employed the grievant most recently as an environmental engineer senior. He has been employed by the agency for a total of 11 years. Grievant has both a B.S. and a M.S. in geology, and is a Certified Professional Geologist. He has substantial experience in the field of geology, both at the agency and in the private sector prior to employment by the agency. At the time of discharge, the chief objective of grievant’s position was, "To provide thorough and technically sound review and evaluation of groundwater monitoring plans, corrective action plans, permit amendments and variances."² The position description also states that the position requires skill in oral and written communications.

In mid-1999, seven months after his transfer to the department, grievant was given an interim evaluation of "Does Not Meet Expectations." During the 1999 performance cycle, the grievant’s annual performance evaluation initially rated his overall performance as "Fair but Needs Improvement." Grievant appealed this rating. The agency believed that its initial evaluation was accurate but conceded that it did not have sufficient documentation to substantiate this rating. Therefore, the evaluation for 1999 was revised to "Meets Expectations." During the 2000 performance cycle, the grievant’s supervisor documented the grievant’s performance much more thoroughly. During the spring of 2000, the grievant was given training at a community college to help him improve his writing ability. Seven months into the 2000 performance cycle, grievant’s supervisor met with him on May 31 and June 6, 2000 to counsel him and to provide mid-cycle feedback regarding grievant’s performance. These meetings were documented in writing³ and addressed in considerable detail the areas in which grievant’s performance was not meeting expectations.

Up to this time, grievant had been working only four days per week (10 hours per day) as an accommodation to him. Grievant operated an outside consulting business and requested the flextime schedule to allow him more time to pursue his personal business interest. During the May 31-June 6 meeting, it was determined that a mentor would be assigned to the grievant for the next 90 days. It was suggested that grievant work the same hours as his mentor (7:00 a.m. to 3:30 p.m., five days per week). Grievant refused to change his hours and continued to work only four days per week. An offer was made to the grievant to share an office with a coworker to facilitate exchange of ideas and to get questions answered promptly. Grievant also refused to agree to this suggestion. The grievant was asked to demonstrate his commitment to the efforts being made to assist him by signing the memorandum that documented the discussions of the May 31-June 6 meeting; grievant refused to sign the memorandum.

Between June and September 2000, grievant’s mentor worked diligently to assist grievant in improving his work product. The mentor reviewed grievant’s draft correspondence and offered suggestions for changes, both technical and grammatical. He also made himself available to answer questions from the grievant at any time.

At the end of the 2000 cycle, the grievant’s overall evaluation was, "Does Not Meet Minimum Expectations." Grievant refused to sign his evaluation and again appealed. The evaluation and grievant’s objections were reviewed by his supervisor, the department manager and the Deputy Director. The Deputy Director concluded that the evaluation ratings, both individual elements and the overall rating, were correct. He directed that two minor comments be removed from the appraisal because one was inappropriate to be in an evaluation and one was irrelevant. Other than the two deletions of comments, the Deputy Director upheld the performance evaluation as written.

Grievant’s performance was adjudged to be not meeting expectations in each of the six elements of his performance plan. The 2000 performance evaluation provides detailed comments of the deficiencies in each element as well as overall performance comments. Particularly telling are some of the overall performance comments found in Section I:

One of grievant’s major functions was the review of annual reports submitted by customers and the drafting of a response letter to provide the customer with feedback regarding the adequacy of the report and the need to correct any deficiencies found in the report. The established production standard for this process was a maximum of four hours for each review and letter, although the process could often be accomplished in substantially less than four hours. The draft letter was expected to be a finished product ready for supervisory review and release. Grievant’s letters frequently contained both technical and grammatical/format errors that required rewriting. Grievant also frequently exceeded the four-hour maximum to complete a review and write an acceptable letter.

A second major function was to provide effective customer support. During the performance cycle, several customers made complaints to the agency about the untimely and inefficient service from grievant as well as incorrect information provided by grievant. The established standard to respond to correspondence from customers was a maximum of 30 days. Grievant failed to meet this requirement on a substantial majority of his correspondence, taking several months and, on some occasions, more than one year to answer inquiries. Customers felt that grievant’s responses were, in some instances inaccurate and, in other situations, passed the buck to someone else.

During the spring of 2000, the agency implemented a computer environmental data system that is intended to make available to the public data regarding the waste permitting process for each waste site in the Commonwealth. Each of the environmental engineers, including grievant, was instructed in May 2000 to obtain computer access to the system and begin inputting data for the sites they supervised. By September 2000, grievant had neither obtained access nor input any data into the system.

When grievant was first assigned to this area in November 1998, he was given 20 facilities to supervise; his two coworkers each had 135 facilities. By August 1999, grievant was considered sufficiently experienced to handle 76 facilities while his coworker had 115 sites. During the first two months of 2000, two newly hired engineers were each given 32 sites. In July 2000, grievant’s workload was reduced to 56 sites, the two new engineers were each given 52 sites and grievant’s mentor was given 87 sites.

Following the 2000 performance evaluation meeting, a new Performance Plan was developed setting forth specific expectations for the 90-day reevaluation period. Included were the expectations that two annual report letters were to be completed each day and that groundwater data for one assigned facility would be input into the database each day. ⁵

It had become apparent during the first half of 2000 that the relationship between grievant and his supervisor was less than ideal. This had resulted in the three-month trial of a mentor from June through August 2000. In September 2000, it was determined that the mentor would become grievant’s direct supervisor. The mentor would report to a different supervisor for purposes of providing oversight supervision of the grievant. The former supervisor was taken out of the grievant’s supervision loop.⁶

In early October 2000, the mentor/new supervisor determined that all unanswered correspondence that had been accumulating in the grievant’s office should be inventoried and prioritized. This provided a tool for the grievant to begin answering the most important correspondence in priority order. The supervisor also prepared a schedule so that grievant could finish all of the correspondence within 90 days.

During the first month of the 90-day period, grievant submitted nine letters for review. All of the letters were unacceptable and required at least one rewrite; some required as many as four rewrites. During the second month, grievant submitted six letters; each required one or more rewrites. During the third month, grievant submitted 37 first drafts that the mentor did not have sufficient time to review. During the 90-day period grievant entered data into the database for only 26 sites instead of the 48 expected. The supervisor’s review found that 66 percent of the sites contained incomplete, inaccurate or misleading data. In addition, grievant insisted on entering data in a format different from the format established by the department and being utilized by all other engineers. As this database was intended for public access, the department felt that all data should be entered in one consistent format.

After one month into the 90-day period, grievant’s mentor and the mentor’s supervisor conducted a performance counseling meeting with grievant on November 16, 2000. ⁷ The grievant’s progress to date was evaluated and he was informed that he was falling significantly short of the schedules that had been established. Grievant was asked what could be done to help him improve; grievant laughed and said he would answer that question in writing after the meeting but he failed to ever do so. Grievant said that his time was accounted for on timesheets but it was pointed out to him that he was not utilizing his time efficiently. For example, most annual report reviews can be completed in significantly less than the four-hour maximum allowed but grievant always recorded at least four hours per review. Grievant also recorded 24 hours on his timesheet for technical reviews of groundwater monitoring plans even though such reviews generally require only five to ten hours each.

Grievant’s mentor/supervisor created a precise and detailed evaluation by which to evaluate grievant’s correspondence during the 90-day period.⁸ Of 44 letters reviewed, 71 percent of the grievant’s drafts contained either technical errors (39%) or poor customer service (32%). No first drafts received from grievant were of the quality that could be released for mailing.

The supervisor’s performance evaluation dated January 11, 2001 provides a detailed recitation of the deficiencies in grievant’s performance. Especially noteworthy is a full page of overall performance comments on page 8. Pertinent observations include:

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In disciplinary actions and dismissals for unsatisfactory performance, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances. ¹⁰The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given

1. an oral or written notice of the offense,
2 .an explanation of the agency’s evidence in support of the charge, and
3. a reasonable opportunity to respond.¹¹

To establish procedures for evaluation of employees of the Commonwealth of Virginia and pursuant to § 2.1-114.5 of the Code of Virginia, the Department of Personnel and Training promulgated Performance Planning and Evaluation Policy No. 1.40 effective September 16, 1993. ¹²The objective of the policy is to provide for the establishment and communication of performance expectations, for the evaluation of employees’ work performance, and for an incentive pay program to reward employees according to their performance. Performance evaluations are conducted annually for the period of November 1 through October 31. The agency has promulgated its own version of this policy that is similar to the state policy but tailored to the specific needs of the agency. An employee who receives a rating of "Does Not Meet Minimum Expectations" must be reevaluated, as outlined below:

1. The supervisor of an employee who receives a rating of "Does Not Meet Minimum Expectations" must give the employee a new Performance Plan within two weeks of the date of the evaluation. The supervisor should also give the employee a Developmental Plan if the employee does not have the skills necessary to satisfactorily perform the job.
   
2. The employee must be re-evaluated three months from the date of the original evaluation. If the employee’s rating continues to be "Does Not Meet Minimum Expectations", the employee may be laterally transferred or demoted to another position. If at the end of the next two months, the Agency cannot, or has elected not to, implement either of the options, the employee must be removed from state service. ¹³

The evidence in this case establishes that the agency properly followed the process required by Policy 1.40. Following evaluation of the grievant’s performance as not meeting minimum expectations, a performance plan of action was developed by the supervisor, and approved by the reviewer on October 10, 2000.¹⁴ Three months later, grievant’s performance was reevaluated and still found to be not meeting minimum expectations. The agency considered other possible positions to which grievant might possibly be either transferred or demoted. The agency determined that the only two possible openings were not suitable for the grievant and elected to terminate his employment.

The grievant’s mentor/supervisor concluded that grievant was determined to set his own timelines and perform work in his own manner, regardless of the instructions and assistance being given him by supervision. He observed that grievant seemed to be going through the motions, was lackadaisical in his approach to tasks and was just unwilling to work. Grievant was also observed to spend an inordinate amount of time on the telephone taking care of personal matters and/or his outside employment. He carried a beeper that was not related to agency work. All of the agency’s witnesses are convinced that the grievant has ample educational background, professional qualification and experience in the agency as well as private industry to perform the requirements of the position.

Grievant asserted several defenses for his failure to achieve the expectations of his position. He complained that his letters were more closely scrutinized during the 90-day period than other employees were. The agency countered that other employees produced initial drafts that required little or no correction while the grievant’s letters contained numerous problems. Grievant contends he was "marked" for criticism, however, the overwhelming weight of documentary evidence and testimony reflects that such criticism was warranted. Grievant states that he was not allowed to work overtime during a several-week period in the fall of 2000. During that time, the files of the agency were being audited. The auditors required that all files be locked at night thereby making it impossible for anyone to work overtime.

Grievant believes that his 1999 and 2000 rankings with regard to element number two are inconsistent. His rating in 1999 was "fair but needs improvement" when he failed to meet the timeliness standard (four hours per review) and had technical errors. His rating in 2000 was "does not meet" when he did meet the timeliness standard but still had technical errors. The agency explained that in 1999 he was still new in the department and had been given some leniency due to having less experience than others. By 2000, however, he was now the second most experienced and should have been making few technical errors. Because he was still making a significant number of technical errors, the ranking was deemed appropriate.

Grievant also contended that Policy 5-1 was not followed, however, he has not identified any specific element of that policy. The Hearing Officer finds that the policy was complied with by the agency. Grievant had indicated that his discharge was inappropriate under the Standards of Conduct (Policy 1.60). In fact, however, grievant’s discharge occurred pursuant to the Performance Planning and Evaluation policy (1.40), not the Standards of Conduct. Grievant also intimates that racial discrimination was a factor in his discharge but he presented no witnesses or documentation to substantiate his allegation. Mere allegation without some evidence to support the charge is insufficient.

In his grievance of the 2000 performance appraisal, grievant attached a list of eight concerns. Attachment B to the grievance provides a detailed four-page response to each of the grievant’s concerns.¹⁵ A substantial preponderance of the evidence presented during the hearing supports the agency’s response. Therefore, a discussion of those issues is unnecessary in this decision.

Finally, grievant asserts that the punishment was too harsh. The evidence in this case demonstrates otherwise. Grievant knew in 1999 that the agency considered his performance to be substandard. Although he successfully obtained a change in his performance rating that year, the change was made because of a lack of documentation not because his performance was satisfactory. In any case, there could be no doubt after May 2000 that the grievant’s performance was viewed as unsatisfactory. The assignment of a mentor, the 2000 performance evaluation and the assignment of a new supervisor all put grievant on notice that he must significantly improve his performance in a short time.

The 90-day performance plan given to him in October 2000 established clear goals, objectives and deadlines. Grievant acknowledged during the hearing that it was inappropriate for him not to have followed agency procedures and, in effect, to write his own rules. Grievant had his own view of how the work should be accomplished. Unfortunately, he failed to recognize that one should perform work in the manner prescribed by the agency, especially when one is faced with possible termination of employment. While grievant appears to have made some effort to improve, his performance, both quantitative and qualitative, fell significantly below the performance plan and below the minimum expectations of the agency. The agency therefore had no choice but to take the action it did.

The decision of the agency is hereby affirmed.

The performance evaluation for the 2000 performance cycle is held to be neither arbitrary nor capricious. The preponderance of available evidence supports the evaluation as written and therefore, the evaluation is AFFIRMED.

The discharge of the grievant effective January 16, 2001 because his performance did not meet minimum expectations during the 90-day reevaluation period is supported by the evidence and is, therefore, AFFIRMED.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7/2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

David J. Latham, Esq.
Hearing Officer